Southern Express Co. v. Seide, 67 Miss. 609

67 Miss. 609 | Miss. | 1890

Cooper, J.,

delivered the opinion of the court.

The appellee shipped by the appellant a small package containing two watch-cases of the value of $80, and the same was lost while in the possession of the company. The appellee had been in the habit of shipping by the defendant company, and had in his possession a book containing the receipts usually given out. by the company on the receipt of packages for shipment. On the day of the shipment the appellee filled out one of these receipts, the italicised portions written by himself, and presented the same to the agent of the company for signature at the time he delivered the package. The receipt as signed, was in the following words :— .

“ Read this receipt.

Southern Express Company, Express Forwarders.

(Not negotiable.)

(Domestic bill of lading.) Canton, 8-24, 1888.

“ Received of T. C. Seide one phg., valued at, — ashed, not given, -dollars, and for which amount the charges are made by said company, marked, N. J. Felix, 71 Nassau St., New York, which it is mutually agreed is to be forwarded to our agency nearest or most convenient to destination only, and there delivered to other parties, to complete the transportation.

“ It is part of the consideration of this contract, and it is agreed that the said express company are forwarders only, and are not to be held liable or responsible for any loss or damage to said property while being conveyed by the carriers to whom the same may be by said express company intrusted, or arising from the dangers of railroads,'.ocean, or river navigation, steam, fire in store, depots, or in transit, leakage, breakage, or from any cause whatever, unless, in every case, the same be proved to have occurred from the fraud or gross negligence of said express company, or their servants, unless specially insured by it, and so specified on this receipt, which insurance shall constitute the limit of the liability of the Southern Express Company in any event; and if the value of the property above .described is not stated by the shipper at the time of shipment, and specified in this receipt, the holder hereof will not demand of the Southern Express Company a sum exceeding fifty dollars for the loss of, or damage to, each package herein receipted for. Nor .shall the said company be held responsible for the safety of said property after its arrival at its place of destination.

“ And if the same is intrusted or delivered to any other express company or agent :(which said Southern Express Company are hereby authorized to <do), such company or person so selected shall be regarded exclusively as the agent of the shipper or owner, and, as such, alone liable, and the Southern Express Company shall not be, in any event, responsible for the negligence or non-performance of any such company or personand the shipper and owner hereby severally agree that all the stipulations and conditions in this receipt contained shall extend to- and inure to the benefit of each and every company or person to whom the Southern Express Company may intrust or deliver the above-described property for transportation, and shall define and limit the liability therefor of such other company or person. In no event shall the Southern Express Company be liable for any loss or damage, unless the claim therefor shall be presented to them in writing at this office, within thirty days after this date, in a statement to which this receipt shall be annexed. All articles of glass, or contained in glass, or any article of a fragile nature, will be taken at shipper’s risk only, and the shipper agrees that the company shall not be held responsible for any injury by breakage or otherwise, nor for damage to goods not properly packed and secured for transportation. It is further agreed that said company shall not, in any event, be liable for any loss, damage, or detention, caused by the acts of God, civil or military authorities, or by insurrection or riot, or the dangers incident to a time of war.

Charge on value. Pd. 25 cents. For the company.

Freight,-. ' Lucas.”

After the loss of the package, the company tendered to the appellee the sum of $50, which it claimed to be the measure of its liability under the contract, which sum was refused by the shipper, and suit was brought for the full value of the property lost. The cause was submitted to the court, a jury being waived, and the learned judge having rendered judgment for the full sum claimed by the plaintiff, the company appeals.

The controversy is, of course, in reference to the effect of the following clause in the receipt: “If the value of the property above described is not stated by the shipper at the time of shipment, and specified in this receipt, the holder hereof will not demand of the Southern Express Company a sum exceeding fifty dollars for the loss of or damage to each package herein receipted for.”

Stipulations in contracts with common carriers of similar import with that under consideration have frequently been presented to the courts for decision, and it is very generally held that their effect is to exempt the carrier from a greater responsibility, only when the loss occui’s without the negligence or fault of the carrier; but where the loss springs from negligence the full value may be recovered, notwithstanding the stipulation. Express Co. v. Moon, 39 Miss. 822; Cole v. Goodwin, 19 Wend. 251; Express Co. v. Backman, 28 Ohio St. 144; Magnin v. Dinsmore, 56 N. Y. 168; Wescott v. Fargo, 61 Ib. 542; Express Co. v. Stettaners, 61 Ill. 184; Express Co. v. Sands, 55 Pa. St. 140; Railroad Co. v. Abels, 60 Miss. 1017.

The burden of proof was upon the defendant to show that the loss occurred without fault on its part, and this burden it failed to meet.

The judgment is affirmed.